BVA9502374 DOCKET NO. 93-12 311 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a compensable evaluation for residuals of injury to the left (minor) thumb. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active service from July 1969 to June 1973. CONTENTION OF APPELLANT ON APPEAL The veteran contends that the residuals of the injury to his left thumb have gotten worse because the pain, which radiates to the wrist, has increased. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for a compensable evaluation for residuals of injury to the left thumb. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the Department of Veterans Affairs (VA) Regional Office (RO). 2. The residuals of injury to the left thumb are currently manifested by complaints of pain, with subjective radiation to the wrist; objective examination reveals full range of motion without functional deficits. CONCLUSION OF LAW The criteria for the assignment of a compensable disability evaluation for the residuals of injury to the left thumb have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.20, 4.31, 4.40, 4.45, 4.71a, Diagnostic Code 5224 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. The evidence pertaining to the issue on appeal consists of testimony presented at a personal hearing, an authorized VA examination conducted in February 1992 and a VA treatment note dated in July 1992. The Board concludes that all relevant data have been obtained for determining the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). I. Pertinent Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1993). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. In determining whether an increased evaluation is proper, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or in equal balance, the claim is allowed. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology. Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1993). Joints are evaluated on the basis of restrictions in their normal range of motion, abnormally increased range of motion, weakened movement, excess fatigability, impaired ability to execute skilled movements, pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. In this case, the diagnostic code that most closely relates to a thumb injury is Diagnostic Code 5224 under 38 C.F.R. § 4.71a, pertinent to rating of individual fingers. Diagnostic Code 5224 provides a 10 percent evaluation if there is favorable ankylosis of the thumb; a 20 percent evaluation is assigned if there is unfavorable ankylosis. When only one joint of a digit is ankylosed or has limited motion, the determination of whether ankylosis is favorable or unfavorable under the rating criteria is made on the basis of whether motion is possible to within two inches of the median transverse fold of the palm; when so possible, the rating will be for favorable ankylosis, otherwise, unfavorable. See 38 C.F.R. § 4.71a. Limitation of motion of less than one inch is not considered disabling. See 38 C.F.R. § 4.71a, Diagnostic Code 5223, Note (a) (1993). If the minimum schedular evaluation requires residuals and the schedule does not provide a zero percent evaluation, a zero percent evaluation will be assigned when the required residuals are not shown. See 38 C.F.R. § 4.31. II. Evaluation of Residuals of Injury to the Left Thumb The veteran's service medical records show that on his separation examination he stated that he had been treated for a hand injury and that it was recommended that he have surgery on his left hand, which he declined. The service medical records are otherwise silent for any clinical findings or symptoms of an injury to the left hand. On the separation examination the veteran stated that he did not have any swollen or painful joints, no bone, joint, or other deformity, and that he was in good health. In conjunction with a VA examination conducted in August 1973, the veteran reported having had an injury to the left thumb in the nature of a strain while in service. It was noted that he was right-handed. He reported having pain in the tendon of the left thumb. Physical examination revealed that the thumb was in normal alignment with no enlargement of the joints. The tendinous structures were found to be of normal consistency, but the veteran reported tenderness on palpation of the longus tendon. There was full range of motion of the thumb in relation to the palm and on abduction. There was no abnormality on thumb- to-finger closure or on fist closure. Pinch effect was normal. The diagnosis provided was residual of strain injury to the left thumb with subjective manifestations without objective clinical findings or anatomical defect or functional loss. In a rating determination issued in November 1973, the veteran was granted service connection for residual of injury to the left thumb with a non-compensable evaluation effective in June 1973. The non- compensable evaluation was upheld in a decision issued by the Board in February 1974. The report of a VA examination conducted in March 1985 states that the veteran reported an in-service diagnosis of tendonitis of the left thumb that had been treated with two injections of cortisone. He also reported that he worked as a music instructor teaching guitar for two years after he was discharged from active service. Physical examination revealed that the range of motion of the joints of the thumb was free, full, unrestricted, and painless. The veteran was able to oppose the thumb to all fingers with excellent pinch. An X-ray of the left hand showed no significant osseous or joint abnormality. The diagnosis provided was tendonitis of the left thumb, healed, with no complications or sequelae. In conjunction with a VA examination conducted in February 1992 the veteran stated that he injured his left hand in November 1989. He reported having extreme pain in the left hand and thumb. Physical examination revealed that the veteran could oppose the left thumb to all fingers with excellent pinch. The range of motion of all finger and thumb joints was unrestricted and painless. He had full but painful motion in the left wrist. The veteran reported marked pain on palpation of the left anatomical snuffbox. X-ray of the left hand and wrist was negative for any abnormalities. The diagnosis provided was marked pain on pressure to the left anatomical snuffbox, cause undetermined. The veteran submitted a treatment note from the VA clinic that showed in July 1992 he reported having pain in the left thumb and requested immobilization. He was given a wrist splint. The medical records submitted by the veteran are otherwise silent for any clinical findings or symptoms of left thumb pain, although the veteran was treated for other disorders. In the RO hearing held in December 1992 the veteran stated that he had pain in the left thumb that shot halfway up his forearm as a result of any sort of activity that he did for an extended period of time, such as playing the guitar. Hearing transcript (T.) at 2. The veteran denied that the pain interfered with his ability to do his job or that it prevented him from doing anything that he desired to do, except play the guitar for extended periods of time. T. 9, 10. In order to support a compensable evaluation, the evidence must demonstrate a functional loss, including limitation of motion or ankylosis, in the use of the left thumb. See 38 C.F.R. §§ 4.40, 4.71a, Diagnostic Code 5224. In this case, physical examination reveals that the veteran has no limitation of motion of the thumb. Although he has complaints of pain with radiation to the wrist, his subjective reports are not otherwise evidenced by objective pathology. Rather, the VA examiner in February 1992 specifically described the motion of the thumb as unrestricted and painless. Additionally, X-rays are also negative for abnormalities that would suggest an organic basis for etiology of the pain. In essence, his contentions are not corroborated by medical findings. Consequently, a compensable schedular rating is not in order. There is no question regarding which of two evaluations would more properly classify the severity of his service-connected disability. See 38 C.F.R. § 4.7. There has been no marked interference with employment or frequent hospitalizations to preclude the use of the regular rating criteria so as to warrant an extra-schedular evaluation. See 38 C.F.R. § 3.321(b). ORDER The veteran's claim for entitlement to a compensable evaluation for residuals of injury to the left thumb is denied. M. SABULSKY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.